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2004 DIGILAW 950 (PNJ)

Amar Singh v. Hari Chand (Deceased By Lrs)

2004-08-25

N.K.SUD

body2004
Judgment N.K.Sud, J. 1. The Civil Revision is directed against order of the Appellate Authority, Chandigarh dated 25.7.1984 allowing the appeal of the tenant-respondent against the eviction order passed by the Rent Controller, Chandigarh dated 6.9.1983. 2. Hari Chand, respondent, took Booth No. 1, Sector 18-C, Chandigarh on rent from petitioner-Amar Singh at a monthly rent of Rs. 200/-. An agreement was executed between the parties incorporating the terms agreed between them. One of the items was that the tenant shall use the said Booth for the purpose for which it is meant for and not for any unauthorised purpose. The tenant was also bound to abide by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952. The Booth, being meant for use as a meat shop only, was let out for that purpose. The agreement also stipulated that the tenant shall not transfer his right under the lease or sub-let any portion thereof. 3. Amar Singh, landlord filed a petition under 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) seeking the eviction of tenant-Hari Chand on the ground that he had let out a portion of the show window to some one who was carrying on the business of scooter repairs in the said portion. For this purpose, Hari Chand was stated to be charging a sum of Rs. 50/- per month from the said person. It was, therefore, alleged that the tenant had not only sub-let a portion of the Booth, but had also changed its user and, thus, was liable to be evicted. 4. In the written reply, Hari Chand admitted his tenancy under Amar Singh. He claimed that he was running the Booth from the inception of the tenancy for the purpose of a meat shop. He further claimed that the entire Booth was in his possession and he had not sub-let any portion thereof. He also denied that any part of the Booth was being used for the purpose of business of scooter repairs. 5. On the pleadings of the parties, the Rent Controller framed the following issues:- "1. Whether the respondent is liable to eviction on the ground alleged in para No. 6 of the petition? 2. Relief." 6. For resolving the dispute, the Rent Controller appointed Shri Vijay Gopal Dogra, Advocate, as a Local Commissioner to visit the spot and submit a report. On the pleadings of the parties, the Rent Controller framed the following issues:- "1. Whether the respondent is liable to eviction on the ground alleged in para No. 6 of the petition? 2. Relief." 6. For resolving the dispute, the Rent Controller appointed Shri Vijay Gopal Dogra, Advocate, as a Local Commissioner to visit the spot and submit a report. The Local Commissioner reported that he had found the show-window of the Booth in dispute looked from outside. On opening the lock, he found certain spare parts of scooters lying inside. On inquiry from Hari Chand, tenant, he (Local Commissioner) was told that these spare parts belonged to one Ujjagar Singh, mechanic, who was found repairing scooters across the road near the shop. The Local Commissioner further observed that on inquiry, Ujjagar Singh admitted that the scooter parts enclosed in the show-window belonged to him. It was also observed that in the rest of the Booth, Hari Chand, tenant, appeared to be carrying on the business of meat selling. On the basis of this report, the Rent Controller concluded that the show-window had been let out by tenant-Hari Chand to Ujjagar Singh for storing of spare parts and, thus, the charges of sub-letting and change in user stood proved. Accordingly, he ordered the eviction of the tenant. 7. Hari Chand, tenant, preferred an appeal before the Appellate Authority Chandigarh who had vide the impugned order set aside the findings of the Rent Controller and dismissed the petition under Section 13 of the Act filed by the landlord. The Appellate Authority has observed that in the ejectment petition, the landlord had nowhere alleged that Hari Chand had sub-let the show-window or a part thereof to Ujjagar Singh. There was nothing on record to prove this charge except for the assertion of the Local Commissioner in his report that the tenant had admitted that the spare parts lying in the show-window belonged to Ujjagar Singh who, according to the Local Commissioner, was present across the road. This, according to the Appellate Authority, was not factually correct because in his cross-examination, landlord-Amar Singh had himself deposed that he had not seen Ujjagar Singh when the Local Commissioner had visited the spot. He had also deposed that Ujjagar Singh had not talked with Shri Dogra at the time of spot inspection. This, according to the Appellate Authority, was not factually correct because in his cross-examination, landlord-Amar Singh had himself deposed that he had not seen Ujjagar Singh when the Local Commissioner had visited the spot. He had also deposed that Ujjagar Singh had not talked with Shri Dogra at the time of spot inspection. Thus, according to the Appellate Authority, the landlord himself had contradicted the report of the Local Commissioner that the latter had seen the alleged sub-tenant. Ujjagar Singh present across the road from the disputed Booth. It was, therefore, held that the observation of the Local Commissioner that the scooter spare parts found in the show-window belonged to Ujjagar Singh was made merely on hearsay basis. The Appellate Authority also observed that the Local Commissioner, who appeared in the witness box as AW-1, did not repeat his observations made in the report in the examination-in-chief but merely referred to the report which was exhibited in routine. He did not specifically depose in the Court that he had seen the scooter spare parts in the show-window of the disputed Booth or that he had seen Ujjagar Singh present across the road from the Booth. The Appellate Authority further observed that no evidence had been led about the rent being charged from the alleged sub-tenant. It was also held that, even otherwise, from the evidence on record, it stood established that the possession of entire booth was with the tenant especially because the presence of the alleged sub-tenant was not even remotely suggested in the statement of the landlord. The Appellate Authority also found some discrepancies in the statement of the landlord about the time when the alleged subletting had taken place. 8. Mr. H.S. Giani, learned counsel for the petitioner, contended that the Appellate Authority has wrongly reversed the well reasoned findings of the Rent Controller which were based on the report of the Local Commissioner. He drew my attention to the photographs, Exhibit A-3 and A-4, Exhibit A-3 shows that the show-window is locked from outside whereas Exhibit A-4 shows that the show-window contains some tools and spare parts. 9. Mr. Chetan Mittal, learned counsel for the respondent, on the other hand, supported the order of the Appellate Authority. He pointed out that the landlord has miserably failed to prove that the tenant had given up possession of the show-window and put Ujjagar Singh in exclusive possession thereof. 9. Mr. Chetan Mittal, learned counsel for the respondent, on the other hand, supported the order of the Appellate Authority. He pointed out that the landlord has miserably failed to prove that the tenant had given up possession of the show-window and put Ujjagar Singh in exclusive possession thereof. He also pointed out that even as per the report of the Local Commissioner, the possession of the show-window was with the tenant who had opened it for his inspection. He further contended that the Local Commissioner had not found any other business being carried out in the demised premises and, thus, there was no question of any change of user either. 10. I have heard the counsel for the parties and have perused the orders of the authorities below as well as the records of the case. 11. The entire case of the landlord hinges on the report of the Local Commissioner dated 20.9.1982, which is as under:- "In accordance with the orders dated 18.9.1982 I visited Booth No. 1, Sector 18-C, Chandigarh in the presence of Shri Amar Singh his counsel Shri S.N. Gupta, Advocate and Hari Chand, at about 4.20 P.M. on 20.9.1982. According to the position existing on the spot and as per enquiries made from Shri Hari Chand, the later is carrying on the business of meat shop in the premises. However, the show-window of the booth was found to have been enclosed with a door having a hook and a lock. I opened the door of show-window and found that it contained spare parts etc. of scooters. On enquiry from Shri Hari Chand, I was told that these spare parts belonged to one Ujjagar Singh, scooter mechanic, who was found repairing the scooters across the road near the shop. On enquiry from Ujjagar Singh, he also admitted that the scooter spare parts in question belonged to him. In the rest of the booth Shri Hari Chand, appears to be carrying on the business of meat selling." A perusal of the above shows that the Local Commissioner had not found any one carrying on the business of scooter repairs in the demised shop. All that he had found was that there were some scooter spare parts stored in the show-window which was locked from outside. It is also clear that the lock of the show-window was opened by tenant-Hari Chand for inspection by the Local Commissioner. All that he had found was that there were some scooter spare parts stored in the show-window which was locked from outside. It is also clear that the lock of the show-window was opened by tenant-Hari Chand for inspection by the Local Commissioner. Thus, the possession of the show-window was clearly with tenant-Hari Chand. N o other person was found either in possession of any part of the shop or carrying on any other business activity. In Bharat Sales Ltd. v. Life Insurance Corporation of India. A.I.R. 1998 SC 1240, the Apex Court in para-4 has described sub-tenancy or subletting in the following terms:- "Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof." Applying this test, it can be safely concluded that the charge of subletting does not stand proved even from the report of the Local Commissioner. It does not even suggest that tenant-Hari Chand had given up the possession of the show-window much less put Ujjagar Singh in exclusive possession thereof. Even if the report is accepted in entirety, all that is proved is that tenant-Hari Chand had stored some scooter spare parts in the show-window belonging to Ujjagar Singh. This, by itself, does not tantamount to subletting. For this purpose, I derive support from the judgment of this Court in Kamlesh Kumar v. Prem Chand, (1999-3)128 P.L.R. 364. In that case, it was held that merely because the tenant had permitted another person to keep his articles in the demised premises, it did not tantamount to inducting him as a sub-tenant. 12. In view of the above, I am satisfied that the Appellate Authority, on an appraisal of the material on record, has recorded a possible finding which is neither unreasonable nor irrational. Thus, this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, cannot interfere in the said finding of fact. Reliance in this behalf is placed on the judgment of the Supreme Court in Rajgopal (Dead) by L.Rs. v. Kishan Gopal, A.I.R. 2003 SCW 4986 in para-20, the Apex Court has observed as under:- "20. Thus, this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, cannot interfere in the said finding of fact. Reliance in this behalf is placed on the judgment of the Supreme Court in Rajgopal (Dead) by L.Rs. v. Kishan Gopal, A.I.R. 2003 SCW 4986 in para-20, the Apex Court has observed as under:- "20. In the case on hand, the first appellate Court, after taking into consideration and discussing the oral and documentary evidence threadbare, recorded a finding that the plaintiffs failed to prove that there was an agreement between the natural and the adoptive fathers to the effect that adopted son shall be treated to be the son of both of them and entitled to inherit their properties and consequently, the adoption of Goverdhan Das was in ordinary form. Mr. V.A. Mohta, learned senior counsel appearing on behalf of the respondents strenuously contended that the finding recorded by the first appellate Court was unwarranted. The finding on this point recorded by the first appellate Court which was final Court of fact was a pure finding of fact and could not have been interfered with by the High Court in the exercise of powers conferred upon it under Section 100 of the Code of Civil Procedure, 1906, more so when no question of law much less substantial one was involved.....". 13. Before parting, it may be mentioned that the counsel for the petitioner had placed reliance on the judgment of this Court in Kartar Singh v. Harbhajan Singh, 1980(1) Ren.C.R. 506. The said judgment, according to me, is clearly distinguishable. In that case, eviction of the tenant was sought on the ground that the tenant had allowed a person to work as a Lalari (dyer) in a small portion of the demised premises which amounted to subletting. The tenant totally denied the occupation by Darshan Singh whereas both the Courts below had concurrently found that Darshan Singh was, in fact, working on the premises as a Lalari (Dyer). It was in this context that it was observed that if once such a finding is there, then it will be for the tenant to show that in what capacity the alleged sub-tenant was occupying the premises. In the present case, it is clear that even at the time of spot inspection, no one except the tenant himself, was found in possession of the shop. In the present case, it is clear that even at the time of spot inspection, no one except the tenant himself, was found in possession of the shop. The alleged sub-tenant Ujjagar Singh had been found repairing the scooter "across the road near the shop." 14. In view of the above, I find no merit in the petition which is, accordingly, dismissed. No costs.